Anonymity, Democracy and Cyberspace

by Jonathan Wallace and Michael Green

Anonymity or pseudonymity[1] on the Internet[2] are today’s “betes noirs”. Numerous commentators have noted the dangers and have called for laws limiting or restricting anonymity. At least one state, Georgia, has already passed such a law.[3] However, proponents of such regulation have the responsibility of explaining why a settled tradition of Supreme Court jurisprudence proclaiming anonymity as a First Amendment right, culminating in the recent McIntyre v. Ohio, is inapplicable to the Internet. We take the position, however, that McIntyre and its predecessors are in fact indistinguishable, and that anonymity is as valuable a right on the Internet as it is in print media.

In this article, we argue that the abuses of anonymity, which are primarily nuisances,[4] not criminal actions, are far outweighed by the social advantages. In the first section, we briefly recount the history of anonymity in literary and political communications, from Rabelais to the present. In the second section, we analyze the Supreme Court cases on anonymity, from Bates v. Little Rock to McIntyre. In the third section, we examine anonymity in cyberspace from a sociological and legal perspective, with particular emphasis on rebutting the various arguments being advanced to support its regulation. We conclude that anonymity in cyberspace is a fundamental underpinning of democracy and of self-realization.

A Brief History of Anonymity

In 1532, Francois Rabelais began his anonymous Chronicles of the Giant Gargantua by publishing Book One, Pantagruel, and two years later, Book Two, Gargantua and Pantagruel.[5] Although Rabelais’ works were political and social satire, they were criticized as being obscene by the Sorbonne, the theological wing on the University of Paris and Book Three, written in 1546, was actually labeled as heresy.[6] The Protestant leader Calvin even distributed papers warning,

[These writers are] curs who assume the attitudes of comedy in order to enjoy greater freedom to vomit their blasphemies. They revel in banquets and they haunt libertine company where, speaking at pleasure, they leave no stone unturned in destroying all fear of God in the minds of their hearers.[7]

Rabelais had very good reason not to publish his works under his real name. Etienne Dolet, a colleague of his, was hanged and burned[8] for publishing a dialogue by Plato denying the existence of the immortal soul.[9] Today, Rabelais’ works are considered satirical masterpieces and the same country that censored them, now honors them.[10] Yet, if he had placed his name on those writings from the beginning, he would have been imprisoned, tortured and perhaps, even burned alive.

Nearly two centuries later, in colonial America, John Peter Zenger, the owner of a printing press and publisher of the Weekly Journal of New York[11] was arrested on charges of seditious libel, particularly for articles directed against British Governor William Cosby.[12] Thenewspaper contained many anonymous articles written by Zenger’s anti?British rule associates sharply criticizing the monarchy. Zenger was arrested and would not reveal the names of the authors, in particular, "Cato"[13], and so stood trial himself instead. Prior to trial however, both of Zenger's New York lawyers were disbarred for questioning the court's authority.[14]

Finally, Andrew Hamilton,[15] a well respected attorney from Philadelphia stepped up and convinced the jury so well, they only needed only a few minutes to acquit even after the judge explained to them that because Zenger had admitted what he did, he must be found guilty.[16] Hamilton's strategy of admitting to the jury that Zenger had, in fact, published the article criticizing the monarchy and then explaining to them that there was nothing libelous about it because it was all true, created the truth defense to defamation.[17] Justice Clarence Thomas says of the Zenger case:

Although the case set the colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind.[18]

This relationship of freedom of the press to anonymity would continue to resonate as the American republic developed. As Justice Thomas further noted,

. . . the Framer’s universal practice of publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech.[19]

Forty years later, in January of 1776, Thomas Paine published the monumental Common Sense.[20] Although he originally signed it, “Written by An Englishman”, in subsequent printings, that by-line was replaced with “an admonition to cease worrying about the author’s identity and attend to what he had to say.”[21] Paine explained, “[the author] is unconnected with any party, and under no influence, public or private, but the influence of reason and principle.”[22] Paine brings out another crucial function of anonymity. When opponents to an idea focus on the person expressing the idea, rather than the idea itself, then intellectual discourse on differing viewpoints becomes lost in a war of irrelevant personal character attacks.

Paine’s anonymity did not last very long, presumably because of the popularity of the work. Indeed, to meet the growing demand for more copies, he procured several other printers to publish his pamphlet.[23] In commenting on its success, Paine said, “I believed the number of copies printed and sold in America was not short of 150,000, [and this was] the greatest sale that any performance ever had since the use of letters.”[24] Paine might not have published the work if he was required to put his name to it. Indeed, Paine's ideas were extremely radical and seditious, and he understood, as do all revolutionaries, that people responsible for such ideas are severely punished..

Many other colonial free thinkers published their thoughts, ideas and opinions under pseudonyms that described their intentions or backgrounds. They used names such as "A Son of Liberty"[25], "A Well?Wisher to Mankind"[26], "Massachusettensis"[27], "A Pennsylvanian"[28] and even just "A Friend to the Liberty of His Country,”[29] to protect themselves from a depravation of their life, liberty or property. Their fears were neither unfounded nor unreasonable. Benjamin Franklin's brother was jailed in Boston for insinuating in his newspaper that the provincial government was not taking effective action against coastal pirates and Samuel Mulford, a New York Assemblyman was expelled because he suggested other members of the Assembly were corrupt.[30]

As the Revolutionary War ended and the period of drafting our Constitution and creating our country began, anonymous pamphlets did not disappear, but actually increased dramatically.[31] The writings that are probably the most visible of the period were virtually all anonymous works. What would later become known as “The Federalist Papers” were the joint works of Alexander Hamilton, John Jay and James Madison, all highly distinguished political philosophers. Their 85 articles, penned under the collective pseudonym, “Publius” became the battleground for debating the architecture of the Constitution and our government. Publius was attacked by other anonymous authors, such as "A Federal Farmer,"[32] “Candidus”[33] and even another “Cato,”[34] commonly referred to as “Anti-Federalists.”[35] The arguments of the Federalists, and to a lesser degree, the Anti-Federalists are essential to understanding the thinking behind various Constitutional doctrines. Many courts, including the Supreme Court, have relied on them to determine what the intent was behind a phrase in the Constitution.[36]

This conflict between federal and state power reappeared in the 19th century, and once again, political writers sought anonymity. This time the issue in question was slavery and many states in the South began outlawing abolitionist expressions.[37] Although there were people like William Lloyd Garrison, who published the leading anti-slavery newspaper, The Liberator, under his own name, many authors relied on anonymity to protect themselves from the ramifications of their unpopular ideas.[38] “A Colored Baltimorean”[39] wrote several of the first articles arguing that Blacks considered themselves Americans, not Africans and further, did not want to return to Africa, but rather live in America in equality. “Communipaw” commented on “a variety of issues, including black economic and social life, scientific theories of race, antislavery strategies, and racial prejudice among white abolitionists.”[40]

Women abolitionists had even more reason to write anonymously because they were fighting prejudice on several fronts. As blacks, they were generally fighting whites against slavery. As women, they were fighting men, both white and black, for gender equality. Anonymous articles and poetry by “Magawisca”[41] and “Zillah”[42] suggested the abolitionists should address the inequality between men and women within the abolitionist movement before it could address the issue of inequality between blacks and whites within America.

Nineteenth century anonymity was not limited to political speech. Indeed, the most famous pseudonymous author in history is unquestionably Mark Twain.[43] Some nineteenth century authors, primarily women, explained their motives for writing anonymously. Mary Ann Evans, for example, was one of the most talented writers of the century. Yet, her real name is obscure compared to George Eliot, the name she chose to veil her true identity and gender. She said:

Whatever may be the success of my stories, I shall be resolute in preserving my incognito - having observed that a nom de plume secures all the advantages without the disagreeables of reputation.[44]

When pressed by the editor publishing her works to reveal her identity, Eliot replied, 

For several reasons I am very anxious to retain my incognito for some time to come, and to an author not already famous anonymity is the highest prestige. Besides if George Eliot turns out a dull dog and an ineffective writer - a mere flash in the pan - I for one am determined to cut him on the first intimation of that disagreeable fact.[45]

Anonymous political writings have continued to play a significant role in modern times. George Kennan, lauded as one of the architects of America's Cold War policy of containment, published his essay, “The Sources of Soviet Power”, anonymously in Foreign Affairs in 1947 signing it “X.”[46] It was based largely on a telegram he had sent to Secretary of the Navy James Forrestal[47] and the controversy erupted when rumors began to “connect it with the Truman Doctrine and Marshall Plan [and] speculate on its significance.”[48] Although several political leaders of the time knew Kennan was “X”, it was decades later when Kennan publicly acknowledged that he was “X”. In 1949, George Morgan[49], using the anonymous name of “Historicus”, also wrote an influential article for Foreign Affairs. 

More recently, a “thinly veiled and eerily precise account of the players and goings-on behind the 1992 Clinton campaign was written by Anonymous.”[50] The book, Primary Colors, created a race to uncover the identity of the author.[51] It is not very difficult to see why the author would not want the President to know who wrote this expose, however, the author also found another useful benefit of anonymity; marketing publicity[52]. An anonymous author is an unsolved mystery gnawing at society’s burning desire for knowledge. As such, people will purchase the book, and perhaps even read it, just to try and identify the author. Indeed, some newspapers even gave odds on who could be the possible author. Klein was 50:1.

Sometimes retaliation results from the author’s identity rather than the content of the writing. In the 1950's, many writers in the entertainment industry were labeled communists and effectively barred from working.[53] Although most, if not all of them, were not writing about political ideologies, the government was still concerned that whatever they wrote would contaminate America .[54] As a result, some were forced to write for television under pseudonyms or use the names of friends who were sympathetic to their plight just to earn a living.[55]

Today, due largely in part because of the Internet, the use of anonymity is arguably at its greatest peak. The Internet has taken the idea of anonymity to a completely new level by forcing most of its users, either actually[56] or constructively,[57] to use some kind of code-name when “surfing” the Internet. Moreover, this use of anonymity in cyberspace has created a fierce conflict between those in favor of restricting its use and those against. Recent controversies illustrate how law enforcement, courts and legislators have used the proverbial “bull in a china shop” approach when trying to balance these conflicting interests.

A major casualty of this conflict was the closing of,[58] arguably the most famous (and popular[59]) anonymous remailer.[60] was shut down by its owner because the law in Finland concerning anonymity on the Internet is not clear. In early 1995, Finnish police, acting on a complaint by the Church of Scientology,[61] used a search warrant[62] to force to divulge the identification of a user the Church claimed had violated their copyrights by anonymously publishing certain Church documents on the Internet.[63]

****Some anonymous remailers keep a record of the identity of the user so that replies to anonymous email can be forwarded to the right individual. Others are “one way” services which strip out all identifiers without keeping track of the user’s identity. In this case, replies to the anonymous message are not possible, and subpoenas are futile, as the remailer keeps no records. In fact, anonymous one-way remailers are mainly for the convenience of users without programming skills, as it is not difficult for more sophisticated users to send anonymous email by exploiting certain features of the network.***

In spring of 1996, the Church was once again granted a search warrant by the Finnish police. This time, however, it was not to identify a particular anonymous account, but to search through the database of real accounts to see if the person they were suing now ever used the system;[64] a person who denied ever having used the system and no evidence was ever presented that he did. refused and asked the Helsinki District Court to delay, but was denied. An appeals court temporarily stayed the District Court’s order[65] Nevertheless, although is no longer operational, many other anonymous remailers have sprung up and some now encrypt the identifying information on accounts so even the owner of the re-mailer can never determine who is really who and a search warrant would be useless.

Regulation for anonymity on the Internet must come from those who understand the Internet well enough to feel comfortable with the technology. Unfortunately, that was not the case in Georgia. In April, 1996, Georgia passed a law that made it a crime for “any person [or] any organization . . . knowingly to transmit any data through a computer network or over the transmission facilities or through the network facilities of a local telephone network for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic, if such data uses any individual name [or] trade name, . . . to falsely identify the person [or] organization . . . transmitting such data . . .”[66]

According to its sponsors, the law was intended to prevent people from misleading the public into believing information comes from one source, when in fact, it comes from another source[67]. It’s intended purpose, however, is dwarfed by what it actually can encompass. To be criminally liable, a person must ‘falsely identify’ themselves while ‘exchanging information’ through ‘transmission facilities’ to ‘a point of access to electronic information’. The statute neither defines nor limits these terms, and as such, is an extremely over broad and vague law on its face. What you have, according to Rep. Kaye, is an “unconstitutional abrogation of the right to free speech”.[68]

For example, it would not be too difficult to include CB radios or even just the airwaves in general as “transmission facilities”, nor would it be a stretch of technology to call a fax machine, pager or even a telephone handset or television a “point of access to electronic information.” Factor in the “falsely identify” provision, and then take into consideration that handles[69], screen names[70], nicknames and even pager codes[71] fit right into that category.

This level of overbreadth and vagueness is the result of a group of people regulating something on which they have not yet been fully educated. Without thorough and informed discussion and debate, a logical and practical decision cannot be made. Rep. George Grindley (R-GA) agrees,

[a]s one who was present for all the debate and discussion on this issue, it is sobering to realize that so few people could have such a large impact on an issue they know so little about. Other states need not follow in our footsteps. . . .[T]he House Council that drafted this legislation was "netless" and the finished product illustrates this basic lack of understanding. It reminds me of the song that says, "don't try to describe the ocean if you've never seen it." [72]

Even more unfortunate is the possibility that this law was originally intended to target a particular site on the Internet; one maintained by Rep. Kaye of the GA House.[73] Rep. Kaye, who opposed the bill during debate on the House floor is now a plaintiff in a lawsuit spearheaded by the ACLU[74]. His site, the Conservative Policy Caucus, disseminates information about Rep. Kaye’s personal, albeit ultra-conservative, viewpoints and opinions relating to the ‘goings on’ in a state legislature.

Nevertheless, although this ‘legislation by haste’ may be the trend,[75] the court's decision in ACLU v. Miller will take place against a rich background of Supreme Court case law on anonymity where the prevailing theme throughout has been confirming the existence of a First Amendment right to engage in anonymous discourse.

The Supreme Court Looks at Anonymity

All of the cases decided by the Supreme Court have been based on the premise that the protection of anonymous speech will lead to more vigorous political debate in the United States.[76] The Court appears to be very cognizant of the fact that, even in a democracy with strong freedom of speech protections, the holders of unpopular opinions are frequently harassed by the government and by private parties who strongly disagree with them.[77] Any prohibition of anonymous political speech harms democracy by limiting the range of available ideas to mainstream ones unlikely to lead to negative consequences for the speaker. The Court also bases its rulings on the premise that the First Amendment freedom of association is meaningless without an associated right of anonymity in one’s associations.

The lead case in the modern jurisprudence of anonymity is National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958), in which the NAACP resisted Alabama’s attempt to require it to disclose the identity of its members. In a lawsuit brought to challenge NAACP’s right to do business in Alabama, the state had attempted to subpoena the organization’s membership list. The organization refused to produce the list and the court held it in civil contempt and fined it $100,000.00. Id. at 466. Basing its reasoning on the First Amendment right to freedom of association, the Court noted that:

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This court has recognized the vital relationship between freedom to associate and privacy in one's associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Id. at 462.

The NAACP proved that past compelled disclosure of its membership had resulted in “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”Id. Under the circumstances, the Court thought it likely that allowing Alabama to force disclosure of the membership lists in the present action would “[a]ffect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” Id.

Alabama argued that private harassment of NAACP members whose identity became known was not state action. Since there was no governmental harm threatened, it was inappropriate to invoke the First Amendment in protection of the NAACP membership’s right to privacy. The Court disagreed.

It is not sufficient to answer, as the state does here, that whatever repressive effect compulsory disclosure of names of petitioner's members may have upon participation by Alabama citizens in petitioner's activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold. Id. at 463.

The Court then concluded:

We hold that the immunity from state scrutiny of membership lists which the association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Id. at 466.

Two years later, in Bates v. Little Rock, 361 U.S. 516 (1960) the Court was again faced with the question whether a state, this time Arkansas, could compel the NAACP to disclose its membership. Little Rock had adopted a local ordinance requiring the organization to register and to list its members.[78] The official rationale was that only by requiring this information could the municipality determine if the NAACP’s activities were subject to a state license tax. The NAACP wrote to the authorities, declining to name its members, based on the “anti-NAACP climate in this state,” fear of “harassment, economic reprisals, and even bodily harm”, and “the right of our members and contributors to participate in the activities of the NAACP anonymously, a right which has been recognized as the basic right of every American citizen since the founding of this country....”[79]

Bates, an NAACP official, was tried, convicted, and fined for a violation of the ordinance. Evidence was introduced at trial that members of the organization had failed to renew their membership because of the passage of the ordinance and that those whose names became known in the community had been subjected to harassment and to threats of physical harm. The Court held: 

Like freedom of speech and a free press, the right of peaceable assembly was considered by the framers of our constitution to lie at the foundation of a government based upon the consent of an informed citizenry -- a government dedicated to the establishment of justice and the preservation of liberty. . . . [A]nd it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the due process clause of the Fourteenth Amendment from invasion by the states. . . . Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference . . . . [cites omitted] Id. at 522.

Citing NAACP v. Alabama, See note xx, supra, the Supreme Court again held that forced disclosure of NAACP membership lists would significantly interfere with the First Amendment right of freedom of association, as applied to the states via the Fourteenth Amendment. Id. at 523. The Court then balanced the potential harm to the organization’s members against the state’s interest in knowing their names and applied its “strict scrutiny” approach, asking whether the state had a compelling interest in the information and whether the ordinance was narrowly tailored and least restrictive means to achieve the goal. 

It was as an adjunct of their power to impose occupational license taxes that the cities enacted the legislation here in question. But governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of an ordinance. Id. at 525.

Searching the record, the Court found no “relevant correlation” between the state’s license taxing power and the ordinance. Id. Arkansas was unable to show that any activity of the NAACP was taxable under the state’s laws. Arkansas had never levied a tax against the NAACP, nor had the organization ever applied for an exemption from any Arkansas tax. The Court voided the judgment below, concluding that:

The municipalities have failed to demonstrate a controlling justification for the deterrence of free association which compulsory disclosure of the membership lists would cause. The petitioners cannot be punished for refusing to produce information which the municipalities could not constitutionally require. Id. at 527.

Justices Black, joined by Justice Douglas, in a concurring opinion, added the following explanation of the Court’s intentions:

Moreover, we believe . . . that First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government. One of those rights, freedom of assembly, includes of course freedom of association; and it is entitled to no less protection than any other First Amendment right . . . . These are principles applicable to all people under our constitution irrespective of their race, color, politics, or religion. That is, for us, the essence of the present opinion of the court. [cites omitted] Id. at 528.

That same year, the Court decided Talley v. California, 362 U.S. 60 (1960) which raised a very different question: Could the state constitutionally require every author of a leaflet to disclose his name in it? Talley was convicted and fined for a violation of a Los Angeles municipal ordinance requiring every handbill to carry the name of the individual who “caused” it to be distributed. Id at 61. Organizations were required to disclose the name of an agent or principal on the handbill. Talley had distributed leaflets in the name of “National Consumer Mobilization” calling for the boycott of local businesses which carried the products of allegedly discriminatory manufacturers. These leaflets failed to disclose Talley’s name. Id.

The Court took a sweeping view of the political importance of anonymity:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. Id. at 64.

The Court reviewed the history of the British press licensing law as applied to the colonies,[80] the sedition acts,[81] the anonymous Junius papers[82] and the Federalist papers[83]. Citing NAACP and Bates, it concluded:

We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified . . . . The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. [cites omitted] Id. at 65.

Justice Harlan filed a concurring opinion, addressing the state’s claimed interest in suppressing anonymous speech.

Here the State says that this ordinance is aimed at the prevention of “fraud, deceit, false advertising, negligent use of words, obscenity, and libel,” in that it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. Id. at 66.

Justice Clark, joined by Justices Frankfurter and Whittaker dissenting, distinguished this case from the NAACP cases. He noted a complete absence from the record of any evidence that Talley would be harmed by disclosing his name on the leaflet. “Talley makes no showing whatever to support his contention that a restraint upon his freedom of speech will result from the enforcement of the ordinance. The existence of such a restraint is necessary before we can strike the ordinance down.” Id. at 69. Citing federal laws requiring disclosure of a magazine’s ownership before it can use the mails, the registration of political lobbyists, and state laws regarding the disclosure of campaign contributors, Justice Clark finished with a rhetorical flourish:

Is Talley's anonymous handbill, designed to destroy the business of a commercial establishment, passed out at its very front door, and attacking its then lawful commercial practices, more comportable with First Amendment freedoms? I think not. Id. at 71.

In Brown v. Socialist Workers Campaign Committee, 459 U.S. 87 (1982) the Court considered whether the First Amendment requires a right to anonymity for contributors to political campaigns and the recipients of campaign expenditures. The Socialist Workers Party, an unpopular minority party running candidates in state elections in Ohio, brought an action challenging disclosure provisions of the Ohio Campaign Expense Reporting Law. Justice Marshall, writing for the majority, noted that Buckley v. Valeo, 424 U.S. 1 (1976), had held that the First Amendment prohibits the government from compelling disclosures by a minor political party that can show a "reasonable probability" that the compelled disclosures will subject those identified to "threats, harassment, or reprisals." Brown, 459 U.S. at 88.

The task before the Court was now to determine whether that language, essentially a sidelight in the Buckley decision on post-Nixon era campaign finance laws, applied to protect the Socialist Workers’ Party. The party, which only had sixty members in Ohio, did not advocate violence but had nonetheless been the object of continuing government surveillance and private harassment. The Court’s account of government surveillance and private harassment of the Socialist Workers’ Party is quite sobering.[84]

Up until 1976, the FBI had investigated all the party’s financial transactions and kept track of the payees of all its checks. Party members had received threatening phone calls and hate mail, party literature had been burned and members’ property destroyed; a party candidate had been harassed by the police; and shots had been fired at a party office. In the year prior to trial, twenty-two members had been fired from their jobs because of their political affiliations, including four in Ohio. For years the FBI had conducted a counter-intelligence “disruption” program against the party, flooding it with paid informants, disclosing party members’ criminal records to the press, sending anonymous letters intended to stir up dissension, and distributing intelligence reports to numerous other branches of government. In the end, the government had accumulated about 8,000,000 documents on the Socialist Workers’ Party, had 300 paid informants who were party members and regularly received information on party activities from 1,000 other non-members.

The Court held that the Socialist Workers’ Party was entitled to the protection envisioned in Buckley and was exempt under the Ohio law from disclosing either its contributors or the recipients of its expenditures:

The First Amendment prohibits a state from compelling disclosures by a minor party that will subject those persons identified to the reasonable probability of threats, harassment or reprisals. Such disclosures would infringe the First Amendment rights of the party and its members and supporters. In light of the substantial evidence of past and present hostility from private persons and government officials against the SWP, Ohio's campaign disclosure requirements cannot be constitutionally applied to the Ohio SWP. The judgment of the three-judge District Court for the Southern District of Ohio is affirmed. Id. at 101.

Justice O’Connor, joined by Chief Justice Rehnquist and Justice Stevens, dissenting in part agreed that disclosure of the party’s contributors should be exempt under Buckley. However, they did not agree that the Court should have held the payees of the party’s expense checks to be similarly exempt.

[T]he SWP has failed to carry its burden of showing that there is a reasonable probability that disclosure of recipients of expenditures will subject the recipients themselves or the SWP to threats, harassment, or reprisals. Moreover, the strong public interest in fair and honest elections outweighs any damage done to the associational rights of the party and its members by application of the state's expenditure-disclosure law. Id. at 107.

Noting that Buckley had generally held campaign finance disclosure rules to be constitutional because of a strong government interest in preventing the influencing and buying of elections, the dissenters pointed out that even a minority party can swing an election. 

Certainly the SWP could have this effect. For example, appellants noted at oral argument that the SWP candidate in the 1974 Ohio gubernatorial election received some 95,000 votes. The Republican candidate's margin of victory over the Democratic candidate was only some 13,500 votes. The impact of minor parties on elections in the United States is well documented. Id. at 110, n5.

Moreover, they argue, business providers of services to a minority party are less likely to be frightened away by disclosure of their names than contributors are. 

Unlike silent contributors, whom disclosure would reveal to the public as supporters of the party's ideological positions, persons providing business services to a minor party are not generally perceived by the public as supporting the party's ideology, and thus are unlikely to be harassed if their names are disclosed. Id. at 111.

The dissenters conclude that “the record, read in its entirety, does not suggest that disclosure of recipients of expenditures would lead to harassment of recipients or reprisals to the party or its members.” Id. at 114.

The Court’s most recent statement on anonymity is McIntyre v. Ohio Campaign Commission, 115 S.Ct. 1511 (1995) another case involving an Ohio law.[85] Like the law overturned in Talley, See note xx, supra, this ordinance was intended to identify the authors of handbills. Unlike the Talley ordinance however, it applied only to handbills distributed in connection with political campaigns. The defendant, Mrs. McIntyre, was an Ohio housewife who printed and distributed leaflets in connection with a local school board campaign. She identified herself on some of these, but neglected to do so on others. She was fined for violation of the ordinance and appealed.[86]

The Supreme Court, in an opinion written by Justice Stevens, cited Talley for the proposition that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Id. at 1516. Several aspects of the opinion are more nuanced than Talley or any of the other predecessor decisions. First, the Court affirmed that the right of anonymity applies to a range of speech much broader than simply political discourse:

Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. Id.

Secondly, the Court identified the legal requirement to add one’s name to a leaflet as more than mere government force, dubious in itself where protected speech is concerned. Disclosure requirements, the Court held, are government force directed to content; when you add your name to a leaflet, you are literally adding text that you might not have added but for government compulsion. The Court thus compared the Ohio ordinance to the Florida newspaper right-of-reply law it had overturned in Miami Herald v. Tornillo 418 U.S. 241(1974):

Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude. . . . The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. [cites omitted] McIntyre 115 S.Ct at 1519.

Third, the Court noted that speech can be more effective sometimes if the speaker’s identity is unknown. 

On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where the identity of the speaker is an important component of many attempts to persuade, the most effective advocates have sometimes opted for anonymity. [cite omitted] Id. at 1517.

Ohio had argued a compelling interest in regulating fraud and libel in election-related speech. Though the Court acknowledged that Ohio had a legitimate interest in doing so, the ordinance was over broad because it went much further than necessary to protect this interest:

As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the election code. Id. at 1521

Ohio had more narrowly-tailored remedies available to it to prosecute illegal election-related speech. “[I]t cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us.” Id. at 1524.

The Court concluded by noting, as it had in Talley, the hallowed tradition of anonymity in American political discourse. 

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. [cites omitted] Id. at 1524.

Justice Thomas, concurring in the result, protested the Court’s philosophical approach, preferring to analyze the “original intent” of the drafters of the Constitution. He found that anonymity, though not mentioned in the Constitution, was a vital part of political discourse in the early colonies. His opinion makes highly interesting reading, whether or not you agree with his methodology. “There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of Publius, are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution.” Id. at 1525, Thomas concurring.

Justice Thomas quoted a Pennsylvania governor, writing anonymously in 1784 to criticize a state official: “And pray may not a man, in a free country, convey thro' t he press his sentiments on publick grievances . . . without being obliged to send a certified copy of the baptismal register to prove his name.”Id. at 1527. He further noted that official attempts to end or deter anonymity are frequently incidental to party conflicts and represent egregious abuses of political power. With some irony, he related the story of the Federalists, who themselves wrote anonymously, pressuring newspapers to refuse to print the Anti-Federalists’ replies without disclosure of the author’s name. “ When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name.” Id. at 1528.

Distinguishing between the “original intent” approach and the “historical” acceptance and widespread use of anonymity, Justice Thomas noted:

Whether great works of literature--by Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases ‘free speech’ or ‘free press’ meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have ‘value’ today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. Id. at 1530.

After reviewing the historical evidence, Justice Thomas concluded that “ it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment.” Id.

Justice Scalia, joined by Chief Justice Rehnquist, dissenting, complained poignantly that the majority preferred the “views of the English utilitarian philosopher John Stuart Mill . . . to the considered judgment of the American people's elected representatives from coast to coast.” Id. at 1531. Further, the dissenters suggested that the Court had discovered “a hitherto unknown right-to-be-unknown while engaging in electoral politics.” Id.

The dissenters used a modified “original intent” approach. Distinguishing the precedents cited by Justice Thomas, they noted that the Founders had never specifically approved, or engaged in, anonymous electioneering, and that, to the contrary, there was a long, unbroken history of states outlawing the practice. 

A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here. Section 3599.09(A) was enacted by the General Assembly of the State of Ohio almost 80 years ago.... Even at the time of its adoption, there was nothing unique or extraordinary about it. Id. at 1532.

The dissenters went on to give numerous other examples of state laws barring anonymity in political campaigns and distinguished the NAACP cases, Tally and Brown on the grounds that each had involved a real threat of harm to the speakers and the necessity to exempt them from legal disclosure requirements to protect them from that harm. “But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge.” Id. at 1534. After giving several hypothetical situations, each more outlandish than the last, the dissenters concluded that “[t]he silliness that follows upon a generalized right to anonymous speech has no end.” Id. at 1535.

They also suggested that an anti-anonymity ordinance would be likely to deter behavior that the state has a reasonable interest in preventing.

[A] person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and [] the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked “no falsity” requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed. Id. at 1536.

They noted the common complaint that campaign rhetoric had become dirtier and nastier in recent years. “Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for ‘dirty tricks.’” Id.

The dissenters saw no parallel to Tornillo, which after all had required a newspaper to print an opposing viewpoint, compelling it to publish content not at all comparable to the mere addition of a name. 

But it is not usual for a speaker to put forward the best arguments against himself, and it is a great imposition upon free speech to make him do so. Whereas it is quite usual--it is expected--for a speaker to identify himself, and requiring that is (at least when there are no special circumstances present) virtually no imposition at all. Id.

In summary, the dissenters said that they could imagine “no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity.” They focus on the negative aspects of anonymity and fail to consider the importance of the positive side of anonymous discourse. Therefore they do not balance these two factors as the majority does and do not come to their logical conclusion. “The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.” Id. at 1516.

Many of the opponents of anonymity on the Internet echo these views as well and they also fail, as do the dissenters, to balance the advantages to society against the nuisances. Indeed, the Internet is the ultimate “marketplace of ideas” and any regulation of anonymous communication on the Internet must analyze both the relevant Supreme Court jurisprudence and the prevailing use of anonymity in cyberspace.

Anonymity in Cyberspace

The Supreme Court’s rulings on anonymity and freedom of speech create a rule that is so simple and clear that it seems necessarily to apply it to cyberspace communications. It is difficult to draw any logical distinction between Talley’s or McIntyre’s handbills and an anonymous email criticizing the employment practices of a corporation or commenting on a local school board race. The same interest in diverse political discourse that supports the result where a paper leaflet is concerned seems clearly to apply to the electronic bits transmitted when an email is sent.

There are only two pathways to a contrary result. One approach involves finding that the world of electronic communication is sui generis and that precedents such as Talley See, note xxx, supra are irrelevant. Thus, regulation which would not be tolerated for more familiar forms of speech, such as Talley’s handbill, are considered acceptable for the Internet. A second, more sophisticated approach is to recognize the significance of precedent, but also to distinguish it based on supposed differences between electronic speech and other forms, such as its pervasiveness, volume, cheapness and ease of access. 

i. Sociological versus legal perspectives

Many of the writers critical of Internet anonymity fail to clarify the issue of whether they are calling for legal solutions or merely for the voluntary adoption of moral codes limiting anonymity. One commentator has noted the significant gap between social attitudes towards anonymity and its legal treatment: “Indeed, it is fairly obvious that in the situations I have discussed where anonymity is abhorred, it is, nevertheless, with only rare exception, perfectly legal. The social norms at issue seem to have no more relationship with legal rules than do the social norms concerning the use of butter knives and napkin rings.”[87]

Any commentator calling for legal regulation of cyberspace anonymity ought to explain why an email message is different than Talley’s or McIntyre’s leaflets. If, on the other hand, a commentator is arguing for voluntary codes of morality, the import is no greater than a statement that Mrs. McIntyre “should” have wanted to put her name on her leaflet. Because of the current confusion about the nature and features of the Internet, the danger is very great that mere sociological statements that Internet users “should” adopt a particular moral code will be taken by legislators as support for legal intervention. 

For example, Anne Branscomb, generally a sympathetic observer of the Internet, says, “[E]lectronic coding of messages that will permit freedom of choice to deal with anonymous messages or that will refuse to deal with them should be devised.”[88] David Johnson says: “The ultimate implication, I believe, is that to achieve a civilized form of cyberspace, we have to limit the use of anonymous communications.”[89]

Branscomb and Johnson, like many other commentators, blur the boundaries between the sociological and legal “should”. Branscomb fails to clarify whether she means that she would like to see her email scheme voluntarily adopted as an Internet standard or whether she would tolerate legislation forcing this result. In general[90] courts and legislators should be extremely wary about measures requiring the re-engineering of a technology, particularly a technology they do not understand. If in fact she is advocating a legal requirement that a coding scheme for email be created, she is seemingly unaware that such a judicial or legislative fiat would be no less a crude intervention in speech than the ordinances overturned in Talley and McIntyre

ii. Legal arguments for regulation

Commentators who call for legal intervention limiting anonymity in cyberspace, but who fail to discuss the contrary Supreme Court cases, are typically committing the error of treating the Internet as sui generis. In other words, they assume that the subject at hand is unique and no prior precedent pertaining to other media is relevant. For example, Noah Levine concludes his Columbia Law Review note by calling for, “. . . a simple statute . . . requiring administrators of anonymous remailers to maintain records of users in a manner which allows for the identification of senders of specific messages.”[91] He fails to explain the distinction between his “simple statute” and one, for example, requiring Mrs. McIntyre to place her name, address and phone number in escrow with a third party before distributing her leaflet. 

Although courts tend to make the mistake of holding that new technologies such as the Internet are sui generis on a hurried first consideration of the issue,[92] upon more careful reasoning it is unlikely that anyone will deny the relevance of analogy, even those who disagree that it should be controlling.[93] Clearly, the interests which apply to the protection of speech should not vary according to the medium by which that speech is transmitted.[94] One exception to this general rule has been broadcast, where a “spectrum scarcity” rationale has been used as the excuse for government censorship that would be repugnant for print media. Although the authors believe that the spectrum scarcity rationale was a mistake, discussion of that issue is far beyond the scope of this article.[95]

Proponents of stricter regulation of online speech, including bans on anonymity, get a more sympathetic hearing from judges (and are also more dangerous to free speech aspirations) when they attempt to distinguish precedent, instead of ignoring it. Arguments that the Internet is a different kind of animal than print tend to be based on the medium’s pervasiveness, its ease of access, the low barriers to self publishing, and the volume of communications possible.[96] Since a “spectrum scarcity” rationale is inapplicable to the Internet, proponents of regulation rely instead on a “pervasiveness” argument: the Internet comes into the home via the personal computer and is especially dangerous to children, who may stumble on obscene or other illicit content unexpectedly. 

“Pervasiveness” as an excuse for regulation was introduced in Pacifica Foundation v. FCC, ( 438 U.S. 726 (1968) where Justice Stevens’ plurality opinion cited it as the basis for upholding the FCC’s ban on use of the “seven dirty words” during prime time. However, the result could just as easily have been based on “spectrum scarcity”--a concept the case omits to mention. ***DOES IT?***

Until mid-1996, there was a substantial view that the scarcity reference in Pacifica was dictum, or at least was not intended as an independent basis for regulation in the absence of spectrum scarcity. See, for example, Judge Dalzell’s opinion in ACLU v. Reno, at 873. The Court threw a wrench in the works with Denver Area Educational Telecommunications Consortium, Inc., v. FCC,116 S.Ct. 2374 (1996), a case involving the regulation of cable television. Although there is no spectrum scarcity in cable broadcasting, at least four justices indicated that they were ready to consider pervasiveness as an independent justification for regulation of an electronic medium. **

Pervasiveness is a plausible, though misleading, argument for regulation of indecent Internet content because of what almost everyone concedes is a compelling government interest in protecting children from sexual material.[97] Pervasiveness is misleading simply because it does not, despite all the hoopla, provide any substantive basis for distinguishing between print and electronic media. A child is just as likely to stumble on indecent content by flipping through a copy of Playboy found in the bottom of a closet, or indeed, to find a rape or dismemberment scene in the Old Testament.[98] The Bible may be called “pervasive” in the sense that it is probably still found in more American households than are television sets. 

Moreover, even assuming for the sake of argument that pervasiveness is a sound legal basis for regulating the Net, it more clearly supports indecency regulation, than a ban on anonymity, because anonymous speech is not clearly dangerous to children in the same sense that indecent speech is. If there is harm to anyone from allowing the equivalent of Talley’s or McIntyre’s handbills to appear anonymously in cyberspace, it is not children who are the potential victims, as they would simply be bored or confused by the content.

Another line of argumentation is that Internet speech is dangerous because of its volume, the potential that it will be heard by too many people. Cass Sunstein has made this argument in the context of the Brandenburg rule (Brandenburg v. Ohio, 395 U.S. 444 (1969) pertaining to incitement of violence:

Suppose that an incendiary speech, expressly advocating illegal violence, is not likely to produce lawlessness in any particular listener or viewer. But of the millions of listeners, one, or two, or ten, may well be provoked to act, and perhaps to imminent, illegal violence. Might government ban advocacy of criminal violence in mass communications when it is reasonable to think that one person, or a few, will take action? Brandenburg made a great deal of sense for the somewhat vague speech in question, which was made in a setting where relatively few people were in earshot. But the case offers unclear guidance on the express advocacy of criminal violence via the airwaves or the Internet.[99]

This viewpoint, rather shocking from a law professor who specializes in the First Amendment, appears to fly in the face of the controlling “marketplace of ideas” metaphor of American free speech jurisprudence created by Justice Holmes in his famous dissent in Abrams v. US: “The ultimate good desired is better reached by free trade in ideas. . . . [T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” 250 U.S. 616, 630 (1919) (Holmes, dissenting)

Holmes’ idea of the unbridled competition of speech was a strangely fatalistic one. Though he is often thought to hold, with Milton[100] and Mill[101] that the best speech will win, his view has been more accurately described as “que sera, sera.”[102] In Abrams (check this; *** Can’t find this*** might be Schenck), he goes on to say that if the American people wind up wanting “dialectical materialism” as their governing idea, so be it; the First Amendment will help them get there.

Sunstein argues the opposite: unpopular speech need not be regulated so long as it only reaches a few people, like the small farmyard group of sympathetic listeners in Brandenburg. Perversely, he suggests that it can be regulated precisely when it begins to get itself accepted in the competition of the market. 

Unlike the pervasiveness argument, which cannot easily be used to justify restrictions on anonymity, Sunstein’s volume argument can be adapted for this purpose. State ordinances barring anonymity, like the ones in Talley and McIntyre, are usually explained as attempts to minimize fraud and libel by making speakers take responsibility for their speech. Sunstein would argue that a handbill, even if patently false, is relatively harmless because it reaches few people, while the Internet can be used cheaply to communicate a libel or fraud to millions at a time. The argument that speech should be regulated because of the size or impressionability of the potential audience has not been well-received by the Supreme Court outside of the broadcast (and now, unfortunately, the cable) context. ***FN***

For example, in Burstyn v. Williams 343 U.S. 495 (1952), the Court rejected the argument that movies should be censored because of their potential profound effect on mass audiences including young people:

It is further urged that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression. Even if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection....Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and of the press, like the First Amendment’s commandments, do not vary. Id. at 502.

Another related, implicit theme running through many of the pro-regulation pronouncements has been the lack of gatekeepers on the Internet. In order to communicate an idea in a newspaper or book or on a TV program, its proponent must first win acceptance from an editor, publisher or producer. In some way, the discomforts of the First Amendment limitation on government intervention in unpopular speech are alleviated by the existence of such private gatekeepers, vigilantly preserving the status quo by excluding unpopular or dangerous ideas from their media.[103]A gatekeeper in a traditional medium may refuse an anonymous communication, will certainly evaluate an anonymous communication before deciding whether to publish it and in some cases, may first satisfy herself as to the identity of the speaker.[104]

The Internet frightens many people because a speaker can potentially reach millions of people without anyone else’s permission. It is a medium without gatekeepers. More accurately, anyone who can afford to pay $20 a month for an Internet account with five megabytes of storage space on a World Wide Web server, can act as her own editor, publisher or producer. An interesting illustration of the anxiety inspired by the lack of gatekeepers in cyberspace has been the attempt by a variety of plaintiffs to hold Internet service providers responsible to screen all speech passing over their servers.[105] An attorney for the Church of Scientology, requesting a preliminary injunction against Netcom, an Internet service provider, asked if the judge “ has been reading about the problems of pseudonymity and anonymity that prevail on the Internet.” He argued that “[i]t may very well be that one’s only remedy, if that is not ameliorated in some way, is to deal directly with the access provider.”[106]

The best reply to the gatekeeper argument is that it has nothing to do with the realities of the anonymity cases.In none of those cases was the anonymity of the plaintiffs mediated by any gatekeeper external to the plaintiffs themselves. The membership of the NAACP was known only to the organization itself; only the Socialist Workers’ Party knew its members and suppliers’ identities; and the Court found that Talley and McIntyre were entitled to distribute their leaflets without anyone else knowing their identity. There is simply no basis in the First Amendment jurisprudence for the sociological argument that society only finds (or should find) anonymity acceptable when it is mediated by a gatekeeper. Lee Tien has observed that this belief “ultimately reduces to a concern about ordinary individuals, not ‘responsible’ elites, engaging in speech without being vertically filtered. Here we see the other side of the theme of ‘cheap speech.’ Such an elitist attitude should not be part of modern free speech philosophy.”[107]

At least one court has held that the Internet’s ease of access and lack of gatekeepers, rather than justifying regulation, make it exempt from government intervention of any kind. In his opinion in ACLU v. Reno, Judge Dalzell portrayed the Internet as a more democratic medium than print:

First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers. ACLU v. Reno, 929 F.Supp. at 877.

Judge Dalzell pointed out that print media, by comparison, accomplish none of these goals. He held that the lamentable effect of the Communications Decency Act, which the three judge court held unconstitutional, would be to reduce the Internet to the undemocratic level of print media:

In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country....This change would result in an Internet that mirrors broadcasting and print, where economic power has become relatively coterminous with influence. Id. at 878.

Thus, cyberspace, in Dalzell's estimation, is worthy of the highest possible First Amendment protection precisely because of its low barriers to entry, its high volume of diverse speech, and its lack of any gatekeepers.

ii. Anonymity is Hardwired in the Medium

One of the problems involved in regulating anonymity on the Internet is that the medium was created, from the ground up, without incorporating any requirement for the use of a user’s name, let alone any way of checking that the name a user offers is her real one. The Internet is based on users’ addresses, identifiers which are not always the users’ names.

While an address used in email must be unique.[108] It may be the user’s initials (, a human name other than the user’s (, a description of the person (, a job title (, a nonsense syllable ( or even a number ( While most mail readers[109] allow the entry and display of the sender’s name next to the email address (“From: Jonathan Wallace <>“) this is for the recipient’s convenience, is not a requirement of the Internet itself and may not always be sent or received. The email message will be delivered just as efficiently to the recipient if it bears the address without the name.

Moreover, most mail reader software is oblivious to the question of whether the name the user has entered in the configuration screen of the program is identical to the name she is using to log on to the network, let alone whether it is her real name. For example, a user logged on to her company’s computer under the name jane.lee could set up her mail program to identify her as “Angela Cummings” in the “From” line--or as “Catlover”. Additionally, unless it is forbidden by company policy, Jane’s user name on her company’s network might itself be a pseudonym such as “sunshine.” In summary, peoples’ real names appear in email haphazardly, for their convenience, as a matter of policies external to the system, and never as a requirement of the Internet itself. 

Other Internet applications, such as Usenet and the World Wide Web, similarly lack any requirement that users identify themselves. A Usenet post may appear under the poster’s email address with no name identified, or with a fanciful name such as “The Flamer”. A World Wide Web page may, like McIntyre’s handbill, fail to identify the speaker at all; may, like Talley’s, identify an organization without naming an individual; or may contain contact information for a responsible individual under a job title (“Comments or problems? Email”) or a pseudonym (“Candyman”). 

While minimal identification of speakers is built into the fabric of the Internet, skilled users with an interest in programming have created tools that further promote anonymity. These include the Anonymizer, a Web page in which you enter the address of another Web page you want to view. The server of the latter page only has a record that material has been requested by the Anonymizer, masking the identity of the actual reader. Anonymous remailers, such as the famous[110] in Finland, receive email from users who wish to be anonymous, strip out all identifying material including the email address, and forward the mail to the proposed recipient.

Any prohibition of anonymity or pseudonymity on the Net, as the Georgia law attempts, would require a complete reworking of the technology to enforce. And then, how much “identity” is enough to comply with the law? Is it sufficient to require that mail reader software always include first and last name in the From: line? Should all email addresses be mandated to be the user’s full name (“”)? Should the Internet also check to make sure that the individual sending mail as “” really is Michael Green? Of course, there is no clear way to accomplish this, short of requiring that email can only be sent with one’s thumbprint or retinal pattern being scanned into the computer to verify its authenticity. Shades of the Pennsylvania governor’s complaint, quoted by Justice Thomas in McIntyre: “And pray may not a man, in a free country, convey thro' the press his sentiments on publick grievances . . . without being obliged to send a certified copy of the baptismal register to prove his name.” Such a system would send shiver’s even down Orwell’s spine.

Nevertheless, some commentators clearly would like to see legislation mandating a restructuring of the Internet. George Trubow emphatically would require limits on anonymity to be built into the network architecture: “If accountability for Internet communications is to be imposed in appropriate circumstances, which can be done only if the identity of the sender can be traced, surely some regulatory mechanism not now available must be established. That's an important agenda item in planning a global, let alone national, information infrastructure.”[111]

However, Douglas Barnes, who describes the impact of requiring a global re-engineering of the Internet to build in accountability, speaks of the “problem law enforcement would face if they attempted to force authentication for all activity on a global Internet work of meaningful size and scope. It would be a form of censorship, and, to quote John Gilmore, ‘The Internet interprets censorship as damage, and routes around it.’ You might end up with a global internetwork with the properties you describe, but it would quite rapidly be replaced with or shadowed by another net that did not have this policy.”[112]

Courts generally follow the rule that they should not too quickly require a technology to be re-engineered to conform to old laws; it is more appropriate to update the law to take account of the technology. In any event, requiring a modification to a widely adopted technology is more of a legislative function than a judicial one. The judges in ACLU v. Reno considered, and rejected, substantial government testimony calling for the judicially mandated adoption of an “L18” scheme: inclusion in every user address of an age identifier which would permit minors to be blocked from Web sites containing indecent material. Id at 878. The Court was unwilling to preserve the constitutionality of a suspect statute, the Communications Decency Act, by ordering the re-engineering of a global network. It also accepted the plaintiffs’ testimony that the implementation of the government’s scheme would harm network performance, by requiring a good deal more processing as servers checked a user’s age repeatedly before serving each requested document. CITE

Another relatively recent and significant example of a court declining to mandate the modification of a technology was the Supreme Court’s refusal in Sony v. Universal City Studios, 464 U.S. 417 (1984) to find that the copying abilities of the VCR were a contributory copyright infringement. In theory, the Court could have ordered VCR manufacturers to eliminate recording capabilities and only make videocassette players. It correctly declined to do so, recognizing the social utility of “time shifting”--recording a show at an hour that you cannot watch it, for later viewing at a more convenient time. 

These courts, in declining to rigidly bind the Internet or the VCR to the Procrustean bed of statutory law, follow a venerable tradition. Justice Cardozo, in his celebrated 1919 essay on The Judicial Process, observed:

The triers of the facts . . . must consult the habits of life, the everyday beliefs and practices, of the men and women about them. Innumerable, also, are the cases where the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade or market or profession . . . . Life casts the moulds of conduct, which will some day become fixed as law. Law preserves the moulds, which have taken form and shape from life.[113]

A judge, Cardozo says, is “under a duty to conform to the accepted standards of the community, the mores of the times.”[114] The mores of the Internet community clearly include anonymity and pseudonymity, much as the mores of the early American republic did.

iii. At Play in the Fields of Identity

Although most Supreme Court analysis of anonymous speech has viewed it from the First Amendment perspective of protecting political discourse, the Court acknowledged in McIntyre that anonymity is a protected form of literary self-expression as well. The mores of the Internet, as some well-known sociological commentators have pointed out, take this idea one step further: the ability to “play” across gender boundaries and create imaginary identities are an important opportunity for self-realization on the Net. 

Recent sociological research has dealt with issues of identity, gender, and play on the Internet. Psychologist Sherry Turkle analogizes cyberspace to a movie screen on which we project ourselves “into our own dramas, dramas in which we are producer, director and star”:

Some of these dramas are private, but increasingly we are able to draw in other people. Computer screens are the new location for our fantasies, both erotic and intellectual. We are using life on computer screens to become comfortable with new ways of thinking about evolution, relationships, sexuality, politics and identity.[115]

Turkle, like many other writers on the topic, quotes the now-famous New Yorker cartoon in which a dog, sitting at a computer screen, says: “On the Internet, nobody knows you’re a dog.”[116] She interviewed numerous Net users involved in MUD’s[117] including one man playing the role of a woman pretending to be a man. “This is more real than my real life,” the player commented. Turkle says: “In this game the self is constructed and the rules of social interaction are built, not received.”[118] She also describes a college student who plays roles in multiple MUD’s simultaneously in separate windows on his screen, while working on his homework in another window. “RL [real life] is just one more window,” this student told Turkle, “and its not usually my best one.”[119] She refers to the self in cyberspace as “a multiple, distributed system.”[120]

Computer science professor Allucquere Rosanne Stone also views cyberspace as a field in which we can all play different roles, including crossing gender boundaries. She notes the high percentage of online users who masquerade as someone of the other sex, and concludes: “In cyberspace, the transgendered body is the natural body. . . . The nets are spaces of transformation, identity factories in which bodies are meaning machines, and transgender--identity as performance, as play, as wrench in the smooth gears of the social apparatus of vision--is the ground state.”[121]

iv. Political anonymity in cyberspace

Anonymity is frequently used to protect the speaker of an unpopular idea in cyberspace, just as it is in traditional media. The Church of Scientology’s actions against were sparked because someone claiming to be an ex-Church official was posting secret Church documents anonymously. The Church has been known to resort to various levels of retaliation when opposed and often uses their vast resources to win by attrition. A single critic of the Church thereforedepends on anonymity to create equality in the global marketplace of ideas.

One of the authors, Jonathan Wallace, publishes a monthly Webzine called The Ethical Spectacle covering ethics, law and politics in our society (FN: He originally began the Spectacle under the pseudonym Jonathan Blumen, concerned to avoid his employer being held responsible for any of the political opinions he expressed there. The Spectacle has since published other people’s anonymous and pseudonymous contributions on matters such as welfare, the Holocaust and Mike Tyson’s rape case.

Bob Wilson is the pseudonym of a conservative Western businessman who writes regularly for the Spectacle, expressing views in strong language about the welfare state, President Clinton’s morality, gun control and the dangers of socialism.[122] In a letter describing his reasons for using a pseudonym, Wilson said: “I use a pseudonym because (like Thomas Paine) I want to isolate my personal, political views from my business interests, and I am skeptical of the ability of some liberal extremists who do not share my moderate, and reasonable viewpoints to refrain from sending me a mail bomb.”[123] Lisa G. is the pseudonym of a New York City woman who contributed the article, “Mike Tyson is a Rapist, Not a Hero.” (FN: ) She also chose not to use her real name for fear of harassment from other readers, some of whom since have written very angry letters to the editor responding to what they see as criticism of their hero.

One of the most troubling and poignant examples of anonymity was the letter received from a German reader who did not want to believe that the Holocaust had occurred. (FN: ) Though it is easy to pigeonhole Holocaust deniers as Nazi apologists, this conflicted individual had gone to the trouble of reading a Spectacle issue on Auschwitz.[124] His argument against the Holocaust was that he could not bring himself to believe that his grandparents’ generation had done such a thing. Presumably, he wrote anonymously for fear of general condemnation, government and private, of his views; Holocaust denial is illegal in Germany.[125]

In each of these cases, anonymity permitted the author to express political or personal views in privacy and without fear of retaliation and contributed significantly to the marketplace of ideas. This is exactly the democratic use of anonymity envisioned by the Supreme Court in anonymity cases from NAACP to McIntyre.

v. Conclusion

Some readers may be appalled by the concept of electronic cross-dressing, role playing and pretense; many others, who have grown up participating in electronic communities may find it perfectly natural. Others will be shocked by the use of anonymity to express doubts about the Holocaust--while recognizing, perhaps grudgingly, that this is exactly the kind of speech the First Amendment clearly protects in traditional media.

Whatever your view, the explosion of viewpoints and exploration of varying identities in cyberspace is exactly the kind of self-realization John Stuart Mill described in On Liberty. In a chapter entitled “Of Individuality, As One of the Elements of Well-Being”, Mill said: “Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing.[126]

Mill concedes that some humans, like some trees, will become stunted or monstrous, will fall over and die off; but, since “the only unfailing and permanent source of improvement is liberty,”[127] government must not intervene in self-realization unless one’s actions are likely to harm others. One’s own good, “either physical or moral, is not a sufficient warrant.”[128] As Mill points out, individual liberty cannot be guaranteed without the corresponding freedom of speech. Human beings have the opportunity to improve themselves through the exchange of new ideas and opinions with other individuals developing in a climate of liberty:

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.[129]

It is this view of liberty that the majority implicitly adopted as the underpinning of free speech in McIntyre, when it approvingly cited Mill (to the outrage of the dissenters):

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill, On Liberty, in On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947)

Anonymity in cyberspace is indispensable both as an element of political expression and as an aspect of personal liberty. Anonymous communications in cyberspace should be treated no differently than anonymous communications in print such as Paine’s Common Sense or Mrs. McIntyre’s handbill. 


[1].Quite simply, on the Internet, anonymity allows a user to transmit information to as many users who wish to view it without these viewers knowing where, why, how and by whom the message was created. Pseudonymity refers to creating an alter-ego by using a screen name ID or handle (ie-as if one were using a CB radio in their car or truck). Traceability, on the other hand, is the ability to link the information with the human body responsible for creating it. Variations of all three work in tandem and it is together, the three have created an hysteria on the Internet. As result we will be using these terms interchangeably throughout this article. For an interesting list of ‘nyms’, see, Secrets of Our National Literature, By William Prideaux Courtney (Archibald Constable & Co. Ltd., London, 1908, Gale Research Co. Detroit, 1968). Pg. 32-33.


[3].See note xxx, infra.
[4].Fake mail cite. Peter Lewis, Microsoft Acquires Roman Catholic Church for stock., etc...

Need FN.
[6]..Jacques Le Clercq, The Complete Works of Rabelais: The Five Books of Gargantua and Pantagruel, Modern Library, Random House, 1936 at xxv. “The secret of the Pantagruel . . . is the theory of life held by your man of the Renaissance: live fully, richly, follow your instincts, find the utmost satisfaction for your body in the pleasures at hand, acquire the utmost delight for the mind in the joys of intellectual curiosity and study.” Id. at xxvi-xxvii.

[7].Id. at xxii. 

[8].Ed. note. It is unclear whether his body was burned after the hanging or if he was hung over a fire to burn to death.

[9].Id. at xxi.

[10]..Need FN,
[11].“James Alexander was the lawyer-editor who contributed articles on freedom of the press to Zenger’s New-York Weekly Journal, masterminded Zenger’s legal defense, and edited the narrative of his trial”, Freedom of the Press: From Zenger to Jefferson, Leonard Levy, Bobbs-Merrill Co., 1966 Pg. xxvi; “The guiding genius and effective editor of the Journal was James Alexander . . .”, A Brief Narrative of the Case and Trial of John Peter Zenger, James Alexander, Belknap Press of Harvard University Press, Cambridge, Mass, 1963. Edited by Stanley Katz. Pg. 8. 

[12].Id. at 9-10. 

[13].‘Cato’ was the joint pseudonym of the Whig political journalists, John Trenchard and Thomas Gordon. Their essays, first published in London newspapers beginning in 1720, were collected in four volumes that went through six editions between 1733 and 1755. No one . . . can spend any time in the newspapers, library inventories and pamphlets of colonial America without realizing that Cato’s Letters rather than Locke’s Civil Government was the most popular, quotable, esteemed source of political ideas in the colonial period. Cato’s letters was quoted in every colonial newspaper from Boston to Savannah, and the most famous of his letters was “Of Freedom of Speech: That the same is inseparable from Public Liberty. Levy at xxiii.

[14].Need FN
[15].Hamilton was, “reputedly the best lawyer in America.” Alexander, pg. 21.

[16].Alexander, pg. 22.

[17].William Bradford used a similar argument when he was charged with seditious libel in 1692. He claimed juries were triers of law as well as triers of fact. Id. at 12. Ironically, in 1729, Hamilton prosecuted Bradford’s son, Andrew for seditious libel. Freedom of the Press: From Zenger to Jefferson, Leonard Levy, Bobbs-Merrill Co., 1966 Pg. xxxii. See also, Levy at xxviii n.31. Perhaps even more ironically, Zenger apprenticed with William Bradford in 1710, entered into a partnership with him in 1725 and one year later became Bradford’s only competitor. Trial of Peter Zenger, ed. Vincent Buranelli, NYU Press 1957 at 3.

[18].115 S.Ct. 1511, 1526

[19].Id. at 1529.

[20].Need FN
[21]..Paine, David Freeman Hawke, Harper & Row Pub.NY1974 Pg. 46. Paine also used pseudonyms such as “Atlanticus”, “Humanus”, “Aesop”, “The Forester” and “Vox Populi” (The Voice of the People). Pg. 29. As Humanus, Paine also wrote a pamphlet strongly condemning slavery that received very violent opposition. Pg. 40.

[22].Id. at 46.

[23].Robert Bell printed the first edition and did not want to wait for Paine to finish revisions for a second edition, so Paine “broke with him”. Id. at 45. One of the several other printer’s Paine employed was, interestingly enough, Thomas Bradford, William Bradford’s other son. Id. See also supra, note 10. 

[24].Id. at 47.

[25].“A Son of Liberty” was Silas Downer. American Political Writing During the Founding Era: 1760-1805 Vol. I, Charles Hyneman & Donald Lutz, Liberty Press, Ind., Ind, 1983). pg. 97.

[26].“A Well Wisher to Mankind” was John Perkins. Id. at 137.

[27].“Massachusettensis” was Daniel Leonard. Id. at 209.

[28].“A Pennsylvanian” was Benjamin Rush. Id. at 217.

[29].“A Friend to the Liberty of His Country” was Benjamin Church. Pamphlets of the American Revolution: 1750-1776 Vol. I, Edited by Bernard Bailyn, Belknap Press of Harvard University Press, Cambridge, Mass, 1965). Pg. 580. See also Illustration of Pamphlet 12, pg. xxx.

[30].Levy at xxix.

[31].Need FN
[32].“A Federal Farmer” was Richard Henry Lee. Lee was a signer of the Declaration of Independence had been president of the Continental Congress. Id. at 142. Not to be confused with “A Farmer”, a pseudonym probably of John Francis Mercer, a law student of Thomas Jefferson. “On the issues of a bill of rights, political parties, and especially representation and simple versus complex government, the argument of this Maryland writer is indispensable to the student of Anti-Federalism.” The Complete Anti-Federalist Vol. 5 (Ed. by Herbert J. Storing) (U. of Chicago Press, 1981) Pg. 5.

[33].“Candidus” was used by both Samuel Adams and Benjamin Austin, Jr. One of Adams’ essays shows that at least one of the Framer’s understood the problem of overspending and national debt, “warning against the tendency to blame on a lack of energy in government what is really due to dissipation and living beyond the means available; the remedy is to be found, not in government reform, but in industry and frugality.” The Complete Anti-Federalist Vol. 4 (Ed. by Herbert J. Storing) (U. of Chicago Press, 1981) Pg. 124. 

[34].Cato Cite.

[35].Compared to the Federalists, the Anti-Federalists are relatively obscure. The Federalists are generally attributed for forcing the issue of a Bill of Rights. However, “[t]he Anti-Federalists are entitles, [] to be counted among the Founding Fathers, in what is admittedly a somewhat paradoxical sense, and to share in the honor and the study devoted to the founding.” What the Antifederalists Were For, By Herbert J. Storing (U of Chicago Press, 1981 pg 3.

[36].FN-SC Search for TE(FEDERALIST) in SCT

[37].Footnote anti-abolitionist laws.

[38].Even Garrison was subject to potential retaliation. “Several black abolitionists followed him from his office to his Roxbury residence each night to protect him from physical attacks.” The Black Abolitionist Papers: Volume III: The US, 1830-1846, Ed. by C. Peter Ripley, et. al., U.NC Press, Chapel Hill: 1991). Pg. 10.

[39].“A Colored Baltimorean” was William Watkins, a free-born and educated Black man. He served as minister and doctor to the blacks of Baltimore and opened up a school for blacks when he was only 19. Later, he wrote for the Frederick Douglass’ Paper under the name, “A Colored Canadian”. Id. at 97.

[40].“Communipaw” was James McCune Smith, who held a doctorate degree in medicine and opened the first black owned pharmacy. “Smith helped define many of the themes of the black abolitionist movement.” Id. at 350.

[41].“Magawisca” (who also used the pseudonyms, “A” and “Ada”) was Sarah L. Forten, a founding member of the Philadelphia Female Anti-Slavery Society. Her works appeared in Garrison’s newspaper, The Liberator. Id. at 145. Her brother, James, Jr., also wrote for the Liberator, under the pseudonym, “F”. Id. at 164. 

[42].“Zillah” was Sarah M. Douglass. She was one of the first to open a school for women and eventually teaching medicine and physiology.

[43].Mark Twain’s real name, of course, is Samuel Clemens.

[44].FN-George Eliot, Letter’s of George Eliot at 219. Witley Ed. George Sproul 1901

[45].FN-Letter Book at 222.

[46].**Foreign Affairs cite

[47].According to Mr. Kennan, “in December 1946, Mr. Forrestal sent me a paper on the subject of Marxism and Soviet power, prepared by a member of his immediate entourage, and asked me to comment on it. . . . I sent the paper back to him [and told him I would prefer] to address myself to the same subject in my own words. . . . [O]n January 31, 1947, I sent to him for his private and personal edification, a paper discussing the nature of Soviet power as a problem in policy for the United States. . . . I had, as it happened, spoken informally, early in January, at the Council on Foreign Relations, in New York, on the same general subject . . . [and] was asked whether I did not have something in writing . . . that could be published in [their] magazine. I sought and obtained Mr. Forrestal’s assurance that he had no objection to its publication. I then submitted it (March 13) to the Committee on Unofficial Publications, of the Department of State, for the usual official clearance. In doing so, I explained that it was the intention that it should be published anonymously. I then crossed out my own name in the signature of the article [and] replaced it with an “X” to assure the anonymity. . . George F. Kennan, Memoirs, Princeton University Press, Princeton, NJ, 1967 Pg. 355.

[48].Id. at 356.

[49].Morgan was a member of the U.S. Department of State. His essay, Stalin on Revolution, was written while he was at the Russian Institute of Columbia University. Soviet Conduct in World Affairs, compiled by Alexander Dallin Columbia University Press, NY 1960 at pg. 142.

[50].Find quote.
[51].Monday, December 30, 1996 PR Newswire

Airline, Tobacco Pusher, Bureaucrats, Baseball Top List of 10 Worst '96 PR


[52].“Journalist Joe Klein flat?out lied when asked if he was the author of the best?selling book Primary Colors. But the truth leaked out as the novel was readied for a paperback edition. Although controversy certainly sells books, Klein and his publisher denied the leak was a matter of convenient timing. ‘It's not easy telling the truth,’ Klein explained.” Houston Chronicle, Wednesday, January 15, 1997, Memorable PR Missteps Of '96, Houston Chronicle By Greg Hassell.

[53].“The Hollywood Ten, as they became known, soon encountered a form of double jeopardy that was typical of that era. While they were awaiting trial on contempt charges, the writers were blacklisted - fired and barred from future employment in the motion picture industry. . . . until they were acquitted in court or had purged themselves of contempt by declaring under oath they were not Communists.” Margaret A. Blanchard, Revolutionary Sparks: Freedom of Expression in Modern America, Oxford University Press, NY, 1992 Pg. 237.

[54].Id. at 238. See also, 176 F.2d 49, 85 U.S.App.D.C. 167 Trumbo v. U.S. (U.S.C.A. DC) (1949).

[55].“Dalton Trumbo, in fact, won the Academy Award for screen writing in 1956, but the film credits went to Robert Rich. Trumbo announced his authorship in 1959 after the Motion Picture Academy of Arts and Sciences rescinded its rule that had disqualified individuals who had refused to testify fully before any investigating committee from eligibility for awards. In 1960, Otto Preminger announced the Trumbo had written Exodus and that his name would appear on the screen. Kirk Douglas then announced that Trumbo would receive screen credit for his authorship of Spartacus.” Id. at 238.

[56].Compuserve, for example, gives users Internet names such as
[57].Many services, particularly local Bulletin Board Systems, strongly suggest the use of handles to protect privacy and some SysOps, including one of the authors, have gone as far as to send them private mail explaining to them that using handles is better.
[58] is an anonymous re-mailer, see note NEXT, supra. It was run by Johan (“Julf”) Helsingius and based in Finland.
[59].had over 500,000 accounts on his service and averaged approximately 6-10,000 transmissions per day
[60].Re-Mailer FN
[61].FN-Erlich Discussion See, JW Book, my article, also cite pro-CoS book, maybe. ;>
[62].In Finland, police can issue a search warrant based on a complaint by another citizen
[63].In fear they would take his entire system (including his entire database linking every anonymous account to its real e-mail address), rummage through it and then return it at some point in potentially multiple pieces, Julf was forced to comply with the search warrant and Julf turned over the e-mail address to the Finnish police and the CoS representative. That e-mail address turned out to be an alumni account at the California Institute of Technology in Pasadena, CA.FN-CalTech refused to give CoS the name of the user, but CoS had LAPD call CalTech and CalTech gave the name to LAPD, who gave it to CoS who identified Dennis Erlich. See CoS art’s.
[64].In other words, the first time, the Church had an e-mail address from, The second time, they wanted to search the real name accounts to see if Grady *** had ‘ever’ used the anonymous remailer for ‘any’ reason.
[65].The decision of the appeals court is pending.
[67].“HB 1630 prohibits a person or a representative of an organization from identifying the Internet home page that he or she sets up and maintains as that of another person or organization. Further, it identifies certain types of information such as trade names and logos, that if used to mislead a visitor to the home page or the reader of E?mail, form the basis upon which mis?representation and fraud are based. HB 1630 does not restrict Freedom of Speech. It does not prohibit the anonymous publication of information; nor does it prohibit the anonymous publication or distribution of electronic data. If a person or the representative of an organization uses certain information such as a trade name or a logo to identify his or her home page as that of another person or organization, he or she clearly does not seek anonymity, but rather seeks to defraud.” Letter from Rep. Donald L. Parsons (R-GA District 40) to Jeff Keuster, Esq. on April 18, 1996. Full text available at
[68].Kaye Comment
[69].As in Citizen Band (CB) Radios.
[70].See note infra, xx****

[71].Ed. Note: Many people, including one of the authors of this article, use numerical codes to identify themselves when paging with a number unknown to the recipient.

[72].Letter from Rep. George H. Grindley (R-GA Dist. 35) to Jeff Keuster, Esq. on May 2, 1996, available at
[75].ACLU v. Reno, Clipper Chip, NY CDA Law, etc..
[76].Need FN.
[77].Need FN.
[78].require that any organization operatingwithin the municipality in question must **414 supply to the City Clerk,

*518 upon request and within a specified time, (1) the official name of the organization; (2) its headquarters or regular meeting place; (3) the names of the officers, agents, servants, employees, or representatives, and their salaries; (4) the purpose of the organization; (5) a statement as to dues, assessments, and contributions paid, by whom and when paid, together with a statement reflecting the disposition of the funds and the total net income; (6) an affidavit stating whether the organization is subordinate to a parent organization, and if so, the latter's name.The ordinances expressly provide that all information furnished shall be public and subject to the inspection of any interested party at all reasonable business hours. Id. at 413-14.

[79].We cannot give you any information with respect to the names and addresses of our members and contributors or any information which may lead to the ascertainment of such information.We base this refusal on the anti- NAACP climate in this state.It is our good faith and beliefthat the public disclosure of the names of our members and contributors might lead to their harassment, economic reprisals, and even bodily harm.Moreover, even aside from that possibility, we have been advisedby our counsel, and we do so believe that the city has no right under the constitution and laws of the United States, and under the constitution and laws of the state of Arkansas to demand the names and addresses of our members and contributors.We assert on behalf of the organization and its members the right to contribute to the NAACP and to seek under its aegis to accomplish the aims and purposes herein described free from any restraints or interference from city or state officials.In addition we assert the right of our members and contributors to participate in the activities of theNAACP, anonymously, a right which has been recognized as the basic right ofevery American citizen since the founding of this country...

[80].“The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government.” Id. at 64.

[81].“The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers.John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books.” Id. at 64-5.

[82].“Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English?controlled courts.Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Id.

[83].Id. See also notes, xxx supra.

[84].The FBI at least until 1976 routinely investigated the financial transactions of the SWP and kept track of the payees of SWP checks....Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the fouryears preceding the trial.These incidents, many of which occurred in Ohio and neighboring states, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members' property, police harassment of a party candidate, and the firing of shots at an SWP office.There was also evidence that in the 12-month period before trial 22 SWP members, including four in Ohio, were fired because of their party membership.....The District Court also found a past history of government harassment of the SWP.FBI surveillance of the SWP was "massive" and continued until at least 1976. The FBI also conducted a counterintelligence program against the SWP and the Young Socialist Alliance (YSA), the SWP's youth organization.One of the aims of the "SWP Disruption Program" was the dissemination of information designed to impair the ability of the SWP and YSA to function.This program included "disclosing to the press the criminal records of SWP candidates, and sending anonymous letters to SWP members, supporters, spouses, and employers." Until at least 1976, the FBI employed various covert techniques to obtain information about the SWP, including information concerning the sources of its funds and the nature of its expenditures.The District Court specifically found that the FBI had conducted surveillance of the Ohio SWP and had interfered with its activities within the State.Government surveillance was not limited to the FBI.The United States Civil Service Commission also gathered information on the SWP, the YSA, and their supporters, and the FBI routinely distributed its reports to Army, Navy and Air Force Intelligence, the United States Secret Service, and the Immigration andNaturalization Service..... The District Court also found the following: "The Government possesses about 8,000,000 documents relating to the SWP, YSA ... and their members....Since 1960 the FBI has had about 300informants who were members of the SWP and/or YSA and 1,000 non-member informants.Both the Cleveland and Cincinnati FBI field offices had one ormore SWP or YSA member informants.Approximately 2 of the SWP memberinformants held local branch offices.Three informants even ran for elective office as SWP candidates.The 18 informants whose files weredisclosed to Judge Breitel received total payments of $358,648.38 for their services and expenses.

[85].Ohio Rev.Code Ann. § 3599.09(A) (1988) provides: "No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general publicpolitical advertising, or through flyers, handbills, or other non-periodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor. The disclaimer 'paid political advertisement' is not sufficient to meet the requirements of this division.When such publication is issued by the regularly constituted central or executive committee of a political party, organized as provided in Chapter 3517. of the Revised Code, it shall be sufficiently identified if it bears the name of the committee and its chairman or treasurer.No person, firm, or corporation shall print or reproduce any notice, placard, dodger, advertisement, sample ballot, or any other form of publication in violation of this section.This section does not apply to the transmittal of personal correspondence that is not reproduced by machine for general distribution. "The secretary of state may, by rule, exempt, from the requirements of this division, printed matter and certain other kinds of printed communications such as campaign buttons, balloons, pencils, or like items, the size or nature of which makes it unreasonable to add an identification ordisclaimer.The disclaimer or identification, when paid for by a campaign committee, shall be identified by the words 'paid for by' followed by the name and address of the campaign committee and the appropriate officer of the committee, identified by name and title."

[86].A detailed analysis of the applicability of McIntyre to cyberspace is given in Lee Tien, “Who's Afraid Of Anonymous Speech? McIntyre and the Internet”, Oregon Law Journal Spring 1996.)
[87].Saul Levmore, “The Anonymity Tool,” U Penn L Rev (1996) )
[88].(FN: Branscomb, Autonomy, Accountabilty, Anonymity).

[89].(FN: David Johnson, “ The Unscrupulous Diner's Dilemma and Anonymity in Cyberspace” (March 4, 1994 essay available at

[90].(as we argue below, see p. ____)
[91].(FN: Noah Levine, Note: “Establishing Legal Accountability for Anonymous Communication in CyberSpace”, Columbia Law Review, October 1996.)
[92].(FN: See Wallace and Green, “Closing the Metaphor Gap”, ____ University of Seattle Law Review ____, pp. _____to _____)
[93].(FN: Cardozo, The Judicial Process; Cass Sunstein, “On Analogical Reasoning) 
[94].(FN: See Tribe, “The Constitution in Cyberspace” ______________ proposing a Constitutional amendment stating that speech is to be treated the same regardless of the media.)
[95].(FN: For a discussion of this issue, see Ithiel Pool, Technologies of Freedom, pp. _____.)) See also Wallace and Green, Closing the Metaphor Gap
[96].(FN: For a technical analysis of new media, including the Internet, and its effects on speech, see Eugene Volokh, “Cheap Speech and What It Will Do”, _______.)
[97].. (FN: The ACLU does not concede this point. During the ACLU v. Reno trial, it introduced as a witness sex expert Dr. __________, who testified that his five year old son had watched videos of oral sex without incurring any harm.)
[98].(FN: For a collection of violent and sexual excerpts from the Bible, see Tanith Tyrr, “The Indecent Bible”, at
[99].(FN get cite from pp. 159-160 of Sex, Laws and Cyberspace) 
[101].On Liberty
[102].( FN Stanley Fish, “There’s No Such Thing as Free Speech”, ________)
[103].(FN: For the purposes of traditional First Amendment analysis, a medium such as a newspaper or television program may be held responsible as the speaker of a libelous statement, or, if it is found simply be to be redistributing the speech of others as in the publication of a classified ad, may be able to avail itself of the rule in Smith v. California, which held that a bookstore owner could not be held liable for illegal speech of which he did not have notice.)
[104].(FN: In his concurrence in McIntyre, Justice Thomas relates the interesting story of the Federalists’ attempt to pressure newspapers into refusing to publish Anti-federalist essays anonymously.) 
[105].See, Cubby, Stratton, CoS v. The World, etc...
[106].(FN: get cite from Sex, Laws pp. 113-114.) 
[107].(FN: Lee Tien, “ WHO'S AFRAID OF ANONYMOUS SPEECH? MCINTYRE AND THE INTERNET”, Oregon Law Journal Spring 1996.)
[108].-the system has no way to differentiate between two individuals using “”, so duplication is not permitted
[109].-programs used to read, compose and send email

[110].See note xxx, supra.

[111].(FN: George B. Trubow, Constitution v. Cyberspace, Business Law Today March/April 1996.)
[112].Douglas Barnes, “How I Learned to Stop Worrying and Love Anonymity,” available at
[113].(FN Cardozo, pp. 63-64.)
[114].Cardozo said, “Let us suppose, for illustration, a judge who looked upon theater-going as a sin. Would he be doing right if, in a field where the rule of law was still unsettled, he permitted this conviction, though known to be in conflict with the dominant standard of right conduct, to govern his decision? My own notion is that he would be under a duty to conform to the accepted standards of the community, the mores of the times.”

[115].(FN: Turkle, Life on the Screen, p. 26)
[116].(Turkle, p. 12)
[117].(“multi-user dungeons”--complex role playing environments based on the Net)
[118].(FN: Turkle, p. 10)
[119].(FN: Turkle p. 13)
[120].(FN: Turkle p 14)
[121].(FN Stone, The War of Desire and Technology at the Close of the Mechanical Age, p. 180.)
[122].(FN: Cite an article)
[123].(FN: Email to Jonathan Wallace, January 2, 1997.)
[125].(FN: It was not, however, clear from his mail whether he resided in Germany.) 
[126].(FN: Mill, p. 68.)
[127].(FN: Mill p. 81)
[128].(FN: Mill, p. 12.)
[129].(FN: Mill, p. 21)